Adoption of C.A.W., Matter of

• Decision Date: 10 October 1996
• Citation: 453 Pa.Super. 277,683 A.2d 911
• Parties: In the Matter of the ADOPTION OF C.A.W. and A.A.W. Appeal of E.J.W., Jr., Natural Father.
• Court: Pennsylvania Superior Court

Page 911

683 A.2d 911

453 Pa.Super. 277

In the Matter of the ADOPTION OF C.A.W. and A.A.W. Appeal of E.J.W., Jr., Natural Father.

Superior Court of Pennsylvania.

Argued June 26, 1996.

Filed Oct. 10, 1996.

Michael J. Nies, Erie, for appellant.

Michael R. Cauley, Erie, for Children & Youth Services, participating party.

Before CAVANAUGH, JOHNSON and CERCONE, JJ.

JOHNSON, Judge.

On this appeal, we are asked once again to consider whether the parental rights of an incarcerated, natural father may be involuntarily terminated pursuant to Section 2511(a)(2) of the Adoption Act of 1980, 23 Pa.C.S. § 2511(a)(2). We find that the trial court properly based its order terminating parental rights upon clear and convincing evidence that the father's present and continued incapacity has caused his children to be without essential parental care, control and subsistence necessary for the children's physical or mental well-being and that the conditions and causes of the incapacity cannot be remedied by the father. We also conclude that, as mandated by Section 2511(b) of the Act, the trial court has properly given primary consideration to the needs and the welfare of the children. Accordingly, we affirm the order that terminated the natural father's parental rights.

E.W. ("Father"), the appellant herein, has a long history of criminal involvement beginning in 1984. In 1986, he was sentenced to 11 1/2 to 23 months' incarceration in the Erie County Prison for corruption of minors. In early 1988, K.B.W. ("Mother") began living with Father. Mother and Father were married on March 31, 1989. C.A.W., born January 30, 1989, and A.A.W., born January 24 1990, (sometimes referred to herein as "the Children") are the children of Mother and Father and are the subjects of this involuntary termination proceeding. In May 1993, while Father was incarcerated in the state penal system, the Erie County Office of Children and Youth ("OCY") received a report that the children in Mother's home were being abused. Mother was then living with a paramour, J.S., by whom she had two other children, boy S.S., born March 7, 1991, and girl S.S., born November 11, 1992. At the time of the report to OCY in May 1993, boy S.S., girl S.S., and the Children were all living with, and in the care of, Mother and J.S.

When OCY began contact with the family in May 1993, Father was in the penitentiary, having been convicted in 1992 of kidnapping, felonious restraint, rape, statutory rape, involuntary deviate sexual intercourse, indecent assault, terroristic threats, attempted involuntary deviate sexual intercourse, and aggravated indecent assault. These convictions all related to Father's criminal conduct involving a ten-year-old girl. His aggregate sentence on these convictions, computed from May 24, 1992, is 32 to 72 years' imprisonment at the State Correctional Institution at Pittsburgh. Prior to his arrest and incarceration on May 23, 1992, Father had been in the State Correctional Institution at Pittsburgh from August 7, 1989 to August 7, 1990 and at the State Correctional Institution at Mercer from November 1990 until August 7, 1991. N.T. dated April 3, 1995, at 64-65. Father was born January 10, 1968; he was twenty-seven years old at the time of the hearing on involuntary termination of his rights. Id. at 64.

As a result of OCY's initial investigations and continuing reports of child abuse, the court of common pleas issued an order on December 20, 1993, requiring that all four of the children be medically evaluated. As a result of that evaluation, C.A.W. and A.A.W. were placed in foster care following a detention hearing on December 22, 1993. Because there was no evidence of abuse of the two children of Mother and J.S. (girl S.S. and boy S.S.), those children were returned to their parents' care. Adjudication proceedings on the Children were held before the Master in January 1994; Father was not present but was represented by counsel. The Master recommended that the Children be adjudicated dependent and found C.A.W. to be an abused child as defined by Section 3 of the Child Protective Services Law, now 23 Pa.C.S. § 6303. On March 3, 1994, the Children were adjudicated dependent.

A dispositional hearing was held before the Juvenile Court on April 25, 1994. Again, Father was not present but was represented by counsel. At the time of the dispositional hearing, the Children remained in foster care. They were receiving counseling at the Rape Crisis Center in Erie due to allegations that they had been sexually assaulted by J.S., Mother's current paramour. Both had been examined by a physician, Dr. Schober, who found physical evidence that A.A.W. had been sexually assaulted. Petition for Involuntary Termination of Parental Rights filed November 22, 1994, p 11, at 4. C.A.W. had been evaluated by the Intermediate Unit and found to be developmentally delayed one to two years. She also displayed behavioral problems including inappropriate sexual behavior. A.A.W. exhibited similar behavioral problems. She attended the Sarah Reed Partial Program during this period to address these issues.

At the conclusion of the dispositional hearing, the Juvenile Court found that all reasonable efforts had been made to prevent placement, and that the Children's continuation in their home would be contrary to their welfare. It thus ordered that the Children be placed under the care and supervision of OCY for an indefinite period of time. It was further ordered that the Children be placed in an OCY foster home for a period not to exceed the next six month review hearing.

The review hearing was held on October 19, 1994. Father remained incarcerated but was represented by counsel at the hearing. Mother had decided to relinquish her parental rights to the Children voluntarily and, as a result, all visitation had been terminated. In a letter to the court dated September 12, 1994, Father had indicated that he did not want Mother to regain custody of the Children for at least another six months. At the conclusion of the review hearing, the court ordered that: (a) the Children remain under the care and supervision of OCY for an indefinite period with continued placement in foster care for a period not to exceed six months; (b) OCY was to follow through with Mother's intention to voluntarily relinquish her parental rights; (c) OCY was directed to pursue involuntary termination of Father's parental rights should he not agree to voluntary relinquishment; and (d) a treatment plan to pursue relinquishment of parental rights in regard to the Children was approved by the court.

On January 3, 1995, upon consideration of Mother's petition for voluntary relinquishment, a decree was entered transferring custody of the Children to OCY and terminating Mother's parental rights and duties. On March 2, 1995, an order was entered scheduling a hearing for April 3, 1995, on O.C.Y.'s petition seeking the involuntary termination of Father's parental rights. The court provided for Father's temporary release from the state penitentiary into the custody of the Erie County Sheriff and Father was transported to, attended, and testified at this hearing. On May 19, 1995, the Honorable John A. Bozza, P.J., made final the court's earlier order of April 11, 1995, which had granted, preliminarily, the petition for termination of Father's parental rights. Father now appeals.

Father advances a single issue for our consideration in his Statement of the Questions Involved:

A. Whether the termination of appellant's parental rights was against the weight of the evidence?

The termination decree was issued by the court of common pleas pursuant to 23 Pa.C.S. § 2511(a)(2), which provides for termination of parental rights in cases where parental incapacity cannot be remedied. In pertinent part, Section 2511 provides:

Grounds for involuntary termination

(a) General rule.--The rights of a parent in regard to a child may be terminated after a petition filed on any of the following grounds:

* * * * * *

(2) The repeated and continued incapacity, abuse, neglect or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.

* * * * * *

(b) Other considerations.--The court in terminating the rights of the parent shall give primary consideration to the needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent....

Our supreme court, speaking through Justice, now Chief Justice, John P. Flaherty, has recently set forth the scope of review and the burden of proof in involuntary termination cases:

"In cases where there has been an involuntary termination of parental rights by the Orphans' Court, the scope of appellate review is limited to the determination of whether the decree of termination is supported by competent evidence. It is established that, in a proceeding to involuntarily terminate parental rights, the burden of proof is upon the party seeking termination to establish by 'clear and convincing' evidence the existence of grounds for doing so."

In re E.M., 533 Pa. 115, 120-21, 620 A.2d 481, 484 (1993) (citation omitted), quoting Matter of Adoption of G.T.M., 506 Pa. 44, 46, 483 A.2d 1355, 1356 (1984). "The standard of clear and convincing evidence means testimony that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitation, of the truth of the precise facts in issue." Matter of Sylvester, 521 Pa. 300, 304, 555 A.2d 1202, 1203-1204 (1989). The grounds for termination of parental rights based on parental incapacity which cannot be remedied are not...